1. The facts of this case are that defendant No. 3 brought a suit (being Mortgage Suit No. 79 of 1914) against the plaintiffs and obtained an exparte decree against them in execution of which the properties in suit were sold and purchased by defendant No. 1 who obtained symbolical possession of the properties on the 20th February 1916. The present suit was brought on the 28th February 1920 in which the plaintiffs prayed 'to have their possession confirmed after declaration of their alleged title to the lands in suit or in the alternative for recovery of possession of the disputed lands, after declaration that the decree in the mortgage Suit No. 79 of 1914 and the auction-sale in execution thereof were fraudulent and void, and if necessary, after setting aside the decree.' One of the pleas raised by the defendants was that of limitation and that is the only point pressed before us on behalf of the defendants-appellants. The plaintiff in his plaint alleged that he came to know of this decree on the 10th December 1918. The First Court accepted that statement and finding that the decree and sale were fraudulent gave the plaintiffs a decree for all the properties in suit which were described in two schedules being Schedules (ka) and (kha). The defendant No. 3 appealed and the learned Subordinate Judge found that in the mortgage bond the property described in Schedule (ka) was fraudulently interpolated, and, therefore, the decree obtained by the defendant on the strength of the bond so far as it related to that property was void as also the sale held under that decree. Regarding the properties described in schedule kha he found that the properties were mortgaged to the defendant under the bond and, therefore, so far as the properties of that schedule were concerned the suit should be dismissed.
2. As regards schedule kha the learned Subordinate Judge observes that the auction-purchaser is a third party and he was not a party to the fraud by which the decree was obtained nor did he collude with the other defendants; so the plaintiffs cannot recover possession of the land described in schedule kha unless he gets the sale and the decree set aside; and he thought that Article 95 of the Limitation Act applied to the case. After making these observations the learned Judge raises the issues--So the question is if the plaintiffs are within three years of the date of their knowledge of the fraud, i.e., the forgery in the bond: On this issue he records his finding in these words: 'In fact I am convinced that they (the plaintiffs) knew of the same (the decree and the sale) on the 20th February 1916 when the symbolical possession was delivered and the defendants wanted them to vacate the bastu. This suit is brought on 28th February 1920. Therefore, the suit is evidently after three years from the date when the plaintiffs knew of that fraud.' As to schedule ka the learned Subordinate Judge is, of opinion, that as the land described in that schedule was interpolated in the mortgage-bond after its execution the decree and sale have not affected the lands of schedule ka. The learned Judge seems to think that different legal considerations should apply to different portions of the decree obtained by the appellant. If this is the view taken by the learned Judge it must be held to be wrong. A transaction tainted with fraud is voidable and not void. A decree obtained by fraud, collusion or any other unlawful means is a pronouncement of a Court of Justice and it cannot be treated as a waste paper. The only objection that can be made to a decree as being void or a nullity must be on the ground that it was passed with out jurisdiction or that the Court which pased it had no territorial or pecuniary jurisdiction over the subject-matter of the suit. It is conceded that the Court which passed the mortgage-decree had jurisdiction over the properties in suit and was pecuniarily competent to try it. That decree, therefore, is a decree which is binding upon all the parties to the suit unless set aside in a properly constituted proceeding. The view that a decree passed with jurisdiction, however tainted it may be with fraud, is not void, hardly needs any support from authorities: for it has been repeatedly held that a plaintiff will not succeed in obtaining any relief before he, if the decree passed against him was by a competent Court, gets it vacated. Reference may be made to the case of Ramsona Choudhurani v. Nabakumar Sinha 10 Ind. Cas. 90 : 13 C.L.J. 404 : 16 C.W.N. 805, where it is observed 'that a judgment rendered by a Court having jurisdiction over the parties and the subject-matter, unless reversed and annulled in some appropriate proceeding, is not open to contradiction or impeachment in respect of its validity, verity, or binding effect, by parties or privies in any collateral action or proceeding. The position is different when a judgment shows on its face that it is void for want of jurisdiction either of the person or the subject-matter; such a judgment is treated as a nullity, collaterally impeachable by any person interested, whenever it is brought in question'. The same view has been expressed in the case of Raj Kumar Sarkel v. Raj Kumar Mali 33 Ind. Cas. 767 : 20 C.W.N. 659 where it was held that a sale in execution of a fraudulent decree is not a void but a voidable sale; till vacated by an appropriate proceeding, the rights created thereby are effective. In that case which covers a greater part of the points raised in this case, the sale was sought to be set aside on failure to set aside the decree; and the learned Judges held 'that it was essential that the plaintiffs should seek, as they did in their plaint, to have the decree set aside on the ground of fraud before they could have the sale vacated. Consequently where the right to have the decree set aside as fraudulent has become barred by limitation, no decree can be made setting aside the sale only as made in execution of a fraudulent decree, and as the plaintiffs have lost their right to attack the decree, they cannot consequently attack the sale'. This view has been adopted in many rulings one of which may be referred to, viz., the case of Bijoy Chand Mahatap v. Asutosh Chakrabarty 62 Ind. Cas. 73 : 48 C. 454 : 25 C.W.N. 42. The result of all these authorities is that the plaintiffs can not get the relief which they seek to obtain in this case before they get rid of the decree which stands in the way. According to the findings of the learned Judge the plaintiffs came to know of the existence of the decree and the sale more than three years before the date of the institution of the suit which is a suit to all interests and purposes a suit for setting aside the decree and the sale. The decree and the sale being only voidable, they must be avoided within the period of limitation fixed by Statute. But it is argued on behalf of the respondent that the suit was only one for a declaration that the decree and the sale were not binding on the plaintiffs and, therefore, it may be treated as a declaratory suit. This is an attempt to evade the clear provisions of law. To hold that the plaintiffs are entitled to have a declaration that a certain decree is not binding against them though they were parties to such proceedings would be to make nugatory such provisions of the law which makes it obligatory on a party to set aside the decree and the sale in order to remove an impediment which stands in the way of his obtaining the relief he seeks. For instance the plaintiff, to avoid Articles 91 or 92 of the Limitation Act, may not seek to have the instrument which purports to have been executed by him cancelled or set aside but may merely sue for a declaration and possession of property or other ancillary reliefs. This he cannot be allowed to do. It cannot be said that the plaintiff is entitled to regard the transaction to which, he is said to be a party a nullity.
3. I am conscious of the view taken in some cases that there are cases where the plaintiff may not be required to remove an apparent obstruction to his right before he seeks possession of the property from which he has been dispossessed. But the view taken in such cases is based upon a different ground. In the present case the plaintiffs were parties to the transaction or proceeding; but in a case in which the plaintiff is not such a party he may not be bound to have the transaction set aside; he may ask for a declaration that it is not binding on him. But where there is a judgment of Court against him he cannot succeed unless he gets the hindrance removed. In the view I take of this case, the decree and the sale were not absolutely void but were voidable and the plaintiffs not having sought the proper remedy within three years from the date of their knowledge, i.e., 20th February 1916, the present suit for setting aside the decree and the safe thereunder is barred and, therefore, the plaintiffs have lost their fight.
4. The result of the above consideration is that these appeals succeed, the decree's of the Courts below are set aside and the plaintiff's suit dismissed. In S.A. No. 1253 of 1922 the appellant will get his Costs in all the Courts but in S.A. No. 1347 of 1922 the appellant will not get her costs in any Court.
5. I agree that these appeals must be allowed. The facts shortly are as follows. The respondents are the mortgagors and the appellant in S.A. No. 1347 of 1922 is the mortgagee. The latter brought a suit in 1 916, obtained an ex parte decree on her mortgage, and put the properties to sale which were purchased by the appellant in S.A. No. 1253 of 1922. Thereafter this latter appellant as auction purchaser took symbolical possession on the 20th February 1916 and the present suit was brought on the 28th February 1920. The plaintiffs-respondents' case was that as a matter of fact one of the items in the schedule of the mortgage-deed was fraudu lently interpolated after the mortgage we executed. They brought the suit on the 28th February 1920 alleging before the Munsif that they only came to know of the decree and the sale on the 10th December 1918, i.e., within three years of the date of the suit. It is clear, therefore, that the suit as framed recognizes that Article 95 is the appropriate Article. The learned lower Appellate Court, however, has found that as a matter of fact they were aware of the fraudulent decree more than three years before the suit was instituted. The lower Appellate Court also found (disagreeing with the first Court) that the appellant in S.A. No. 1253 of 1922 (the auction purchaser) neither had any previous knowledge of any fraud in the decree nor acted in collusion with the appellant in S.A. No. 1347 of 1922. The only argument addressed to us on behalf of the appellant is that as Article 95 is the Article applicable and as the learned lower Appellate Court has found that the plaintiffs had knowledge of the decree more than three years before he brought the suit, the suit is barred under that Article. In this Court a defence is set up on behalf of the respondent that as a matter of fact Article 95 is not applicable but another Article, namely, the residuary Article, i.e., Article 120 applies, and the learned Vakil for the respondent has argued that this is not a suit to set aside the decree but a suit for declaration that the decree and the sale under it are not binding on them. It is only a declaratory suit and the plaintiff is still in possession. The only point, therefore, that appears to me to be arguable is whether, on the form of the suit as framed, this suit is one to set aside a decree. My learned brother has dealt with that point and I agree with him in his finding that it is a suit to set aside the decree passed in Suit No. 79 of 1914 and that the plaintiffs cannot get over the limitation of three years by arguing that it is a suit for a mere declaration or that it is a case for declaration with certain reliefs I, therefore, agree with my learned brother that both the appeals must be allowed.